Disconnect Between Perception and Reality Re: Civil Jury Trials
So Says Study by Boston Bar Association
Emphasizing that the future of the American jury system is at stake, the Boston Bar Association today called on judges, law firms, and clients to take specific steps to provide newer lawyers with opportunities to gain real trial experience, and to overcome scheduling hurdles for lawyers seeking civil jury trials. The recommendations are published in a report called Jury Trial Trends in Massachusetts: The Need to Ensure Jury Trial Competency among Practicing Attorneys as a Result of the Vanishing Jury Trial Phenomenon. The report, based on an 8 month study, was produced by the BBA Task Force on the Vanishing Jury Trial, which was co-chaired by Anthony M. Doniger, a Senior Partner at Sugarman, Rogers, Barshak & Cohen, P.C. and Joan A. Lukey, a Senior Partner at WilmerHale.
“The jury trial is one of the purest forms of American democracy,” said Doniger. “Jury trials level the playing field amid tremendous disparities in power among the parties to a dispute.”
A key finding of the report, however, is that there is a disconnect between the perception of most lawyers that civil jury trials in the Massachusetts Superior Court are declining, while members of the judiciary believe they are as busy as ever.
“When we delved into this to identify the cause for this disconnect, we realized that the Bench and Bar are both right,” said Lukey. “The courts are as busy as they ever have been, but a disproportionate share of trial days are being consumed by medical malpractice trials.” Statistics gathered by the task force suggest that medical malpractice cases consume roughly three times their proportionate “share” of trial days, based on the percentage of cases filed, at least in Suffolk and Middlesex counties; and in some smaller counties (e.g. Dukes County) medical malpractice trials consume as much as 50 per cent of all trial days. The task force notes that because too few defense counsel are generally called upon by insurers to handle too many significant malpractice trials, the perception has arisen within the Bar that medical malpractice cases are in some instances resulting in the delay of trials of other types under the “firm and fair” trial date principle.
Amid concerns about the need for reliable data, the task force applauds the Superior Court for its new tracking system, but strongly recommends that a system be implemented that more precisely tracks the categories of cases filed, and determines the percentage of jury trials and jury trial days that are consumed by each category. The task force also recommends that if material discrepancies are found and sustained over a multi-year period, that specific studies be undertaken to determine whether inadvertent priorities or practices are favoring certain categories without reasonable justification.
The report, which expresses significant concerns about changes in the profession impeding the professional development of future generations of lawyers, calls on judges presiding over pre-trial conferences and related matters to recognize opportunities for a junior attorney to participate in the examination of witnesses or other significant trial work. This particular recommendation is based on a standing order issued by Federal District Judge F. Dennis Saylor IV and Magistrate Judge Charles B. Swartwood. Citing a decline in courtroom opportunities for young attorneys, the Order notes that Judges Saylor and Swartwood, “as a matter of policy, strongly encourage the participation of relatively inexperienced attorneys in all court proceedings” including, where appropriate, “the examination of witnesses at trial” subject to certain cautions set forth in the Order.
Acknowledging that few civil practitioners entering practice today can reasonably expect to try a significant number of cases over their entire careers, the report provides law firms with a number of tools, including externships and pro bono work involving appearances in court. The report also urges clients, particularly parties such as insurance companies who have numerous cases in court, to think more innovatively about approaches to staffing – with an eye toward developing a deeper cadre of capable trial lawyers that would better secure their own needs, aid the courts in scheduling trials, and grow more seasoned replacements.
“The jury trial is too important a part of our Constitutional system to atrophy and die,” said Doniger. “We all have a part to play in ensuring the future of the jury trial.”
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